WASHINGTON — As millions of Americans vote by mail for the first time this year, whether their ballots are counted in a majority of states will come down to an election worker deciding if their signature is valid — a process that one voting rights lawyer recently described as “notoriously unreliable and error-prone.”
Election law experts, voting rights advocates, and campaign lawyers are holding their breath to see if ballot signatures become the hanging chads that define any legal battles that crop up after Nov. 3. The fear is another recount scenario that delays the final results of the presidential race — similar to what happened in Florida in 2000, this time with viral photos of election workers studying the loops and curls of signatures on rejected mail-in ballots instead of holes on punch cards.
At least 31 states require some kind of analysis to make sure that voters’ signatures on their absentee ballots match those on their registration or other government records, according to a survey by the Campaign Legal Center. Voting rights advocates have argued that signature matching is a flawed method of verifying ballots because people’s signatures change over time, particularly those of people who are young or have disabilities. They’ve presented evidence in court that a significant percentage of ballots rejected for signature-match problems are actually valid.
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The 2018 midterm elections offered a preview of that worst-case scenario when a close Senate race in Florida became mired in lawsuits over ballots that were rejected because of signature mismatches; it took 12 days after the election for the state to declare Sen. Rick Scott the winner. A surge of litigation around signature rules since then has forced more states to either give voters a way to save, or “cure,” their ballots, or abandon signature matching altogether as grounds to reject ballots, at least for the November 2020 election. Florida adopted new voter protections around signature matching in summer 2019, ending a court fight that persisted even after Scott took office.
In South Carolina, the secretary of state issued a notice to county election officials just this week, prohibiting them from rejecting ballots based on signature mismatches, shortly before a federal judge entered an order to that effect. The Pennsylvania Supreme Court ruled last week that state election laws don’t allow mail-in ballots to be tossed because of signature-match issues; it was a loss for President Donald Trump’s campaign, which had intervened to argue for stricter signature rules.
“I’m feeling better generally about it than if you’d asked me about it at the beginning of the year or at the beginning of 2018, when a number of states didn’t have any sort of process,” said Mark Gaber, director of litigation at the Campaign Legal Center, one of the groups involved in bringing lawsuits to push states to adopt more voter-friendly signature-match rules.
But Gaber and other lawyers who spoke with BuzzFeed News said they could still imagine scenarios where campaigns end up fighting in court over ballots that are rejected because of signature problems, given the dramatic increase in absentee voting this year — especially if the results of the presidential race or other major contests are too close to call on election night.
Younger, first-time absentee voters are more likely to have their ballots rejected because of signature mismatches or other mistakes, said Rebecca Green, codirector of the Election Law Program at William & Mary Law School.
According to the US Elections Project, more than 51 million Americans have returned ballots by mail as of Thursday; according to the US Election Assistance Commission, just over 57 million people total voted early, absentee, or by mail in the 2016 election.
Campaign lawyers could race to court if they learn that a statistically significant number of ballots in a “too close to call” state were rejected because of signature mismatches or other problems, such as illegible or incomplete witness signatures in states that require those. That’s even more likely if there’s evidence that US Postal Service delays mean voters don’t learn their ballot was rejected or aren’t able to take advantage of the processes available to cure their ballot in time to be counted.
“That’s where the rubber meets the road in terms of how complicated it will be to administer this election,” Green said. “If there’s a way to cure a rejected ballot, that will be the rush.”
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Voting rights lawyers who have fought over signature-match laws say that, in a vacuum, they aren’t opposed to the practice. They agree that state and local election officials have an interest in coming up with ways to confirm that the person who filled out and mailed an absentee ballot is, in fact, the voter, even though actual instances of fraud are low.
The problem is execution. The amount of training that election workers get about how to analyze a voter signature varies. In some states, officials will compare a ballot signature with that on the ballot application; in other states, election workers draw on a broader database of a voter’s other signatures logged by government agencies.
Celina Stewart, director of litigation for the League of Women Voters, one of the groups that’s been active in suing states over signature-match rules, said the practice is “redeemable” if election workers receive robust training and understand how a person’s signature can change over time.
“But the problem is that many states, and local [officials] especially, don’t have the time to do that [and] don’t have the expertise to do that, often recruiting right up to Election Day,” Stewart said.
States vary in how they notify voters about a signature-match problem; Hawaii requires attempts by mail, phone, and email, while other states rely solely on mail. Each state also varies in what options they give voters to cure their ballots and how much time people have to do that, according to a survey of state laws by the National Conference of State Legislatures.
Ohio has a process to notify voters and let them cure ballots with signature issues, but it relies solely on the mail; voting rights groups sued this year, arguing that the state’s timeline was too short to account for postal delays. The challengers presented one expert who found only a 3% probability that a ballot rejected for a signature-match issue actually featured an invalid signature; the state presented data that the number of ballots rejected for nonmatching signatures was low compared to the total number of absentee ballots cast. A federal judge in September denied the challengers’ request to change the state’s “notice and cure” process, finding that Ohio’s interests in preventing fraud — or the appearance of fraud — and running an “orderly election” outweighed the “moderate burden” on voting rights.
There are still a handful of states that don’t have a process for voters to fix their ballots if their signature doesn’t match. Earlier this week, a federal judge in Arkansas rejected an effort by voting rights groups to force the state to adopt a “notice and cure” process for the November election. The judge agreed with the challengers that the situation was probably unfair to voters, but he concluded he couldn’t change it because it was too close to the election and he didn’t want to inject more uncertainty.
“There appears to be much merit to Plaintiffs’ arguments that notice and an opportunity to cure signature deficiencies in absentee ballots ultimately will reduce voter confusion and disenfranchisement, encourage voter participation, and prove to be in the public interest as this litigation continues,” US District Judge P.K. Holmes III wrote in the Oct. 26 opinion.
But, Holmes continued, forcing the state to make changes after absentee voting had already started “seems likely to further disrupt county election processes during a period that has already been characterized by a host of disruptive pandemic-related changes to voting procedures, and — rightly or wrongly — to undermine confidence in the electoral process.”
In Tennessee, voters with signature-match problems must start over and submit a new absentee ballot or cast a provisional ballot in person, assuming they find out in time. Voting rights groups sued this year and asked a judge to enter an injunction requiring the state to give voters a way to correct their ballots before rejecting them. A federal judge in Tennessee denied that and the US Court of Appeals for the 6th Circuit upheld that decision in a 2–1 order on Oct. 15.
Judge Karen Nelson Moore dissented, writing that her colleagues and other judges across the country who had rejected efforts to make it easier for people to vote remotely this year were sanctioning “a systematic effort to suppress voter turnout and undermine the right to vote.”
Gaber said that until voters know for sure that their ballot has been accepted, they should confirm they know how their local election office might try to reach them if there’s a problem.
“Maybe for just a week around the election, answer the phone,” he said. “And if you see mail from your local government, read it, and do what you need to do to make sure your vote is counted.”